Category Archives: Free Speech

Post navigation

[[A person speaking to the reader.]]Person: Public Service Announcehment: The *right to free speech* means the government can’t arrest you for what you say.[[Close-up on person’s face.]]Person: It doesn’t mean that anyone else has to listen to your bullshit, – or host you while you share it.[[Back to full figure.]]Person: The 1st Amendment doesn’t shield you from criticism or consequences.[[Close-up.]]Person: If you’re yelled at, boycotted, have your show canceled, or get banned from an internet community, your free speech rights aren’t being violated.[[Person, holding palm upward.]]Person: It’s just that the people listening think you’re an asshole,[[A door that is ajar.]]Person: And they’re showing you the door.{{Title text: I can’t remember where I heard this, but someone once said that defending a position by citing free speech is sort of the ultimate concession; you’re saying that the most compelling thing you can say for your position is that it’s not literally illegal to express.}}

This work is licensed under aCreative Commons Attribution-NonCommercial 2.5 License.

This means you’re free to copy and share these comics (but not to sell them). More details.

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

[[A person speaking to the reader.]]Person: Public Service Announcehment: The *right to free speech* means the government can’t arrest you for what you say.[[Close-up on person’s face.]]Person: It doesn’t mean that anyone else has to listen to your bullshit, – or host you while you share it.[[Back to full figure.]]Person: The 1st Amendment doesn’t shield you from criticism or consequences.[[Close-up.]]Person: If you’re yelled at, boycotted, have your show canceled, or get banned from an internet community, your free speech rights aren’t being violated.[[Person, holding palm upward.]]Person: It’s just that the people listening think you’re an asshole,[[A door that is ajar.]]Person: And they’re showing you the door.{{Title text: I can’t remember where I heard this, but someone once said that defending a position by citing free speech is sort of the ultimate concession; you’re saying that the most compelling thing you can say for your position is that it’s not literally illegal to express.}}

This work is licensed under aCreative Commons Attribution-NonCommercial 2.5 License.

This means you’re free to copy and share these comics (but not to sell them). More details.

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

[[A person speaking to the reader.]]Person: Public Service Announcehment: The *right to free speech* means the government can’t arrest you for what you say.[[Close-up on person’s face.]]Person: It doesn’t mean that anyone else has to listen to your bullshit, – or host you while you share it.[[Back to full figure.]]Person: The 1st Amendment doesn’t shield you from criticism or consequences.[[Close-up.]]Person: If you’re yelled at, boycotted, have your show canceled, or get banned from an internet community, your free speech rights aren’t being violated.[[Person, holding palm upward.]]Person: It’s just that the people listening think you’re an asshole,[[A door that is ajar.]]Person: And they’re showing you the door.{{Title text: I can’t remember where I heard this, but someone once said that defending a position by citing free speech is sort of the ultimate concession; you’re saying that the most compelling thing you can say for your position is that it’s not literally illegal to express.}}

This work is licensed under aCreative Commons Attribution-NonCommercial 2.5 License.

This means you’re free to copy and share these comics (but not to sell them). More details.

Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesnt equality, also protected by the Constitution, take precedence?

After the tragic violence at a white supremacist rally in Charlottesville, Virginia, on August 12, these questions take on renewed urgency. Many have asked in particular why the ACLU, of which I am national legal director, represented Jason Kessler, the organizer of the rally, in challenging Charlottesvilles last-minute effort to revoke his permit. The city proposed to move his rally a mile from its originally approved siteEmancipation Park, the location of the Robert E. Lee monument whose removal Kessler sought to protestbut offered no reason why the protest would be any easier to manage a mile away. As ACLU offices across the country have done for thousands of marchers for almost a century, the ACLU of Virginia gave Kessler legal help to preserve his permit. Should the fatal violence that followed prompt recalibration of the scope of free speech?

The future of the First Amendment may be at issue. A 2015 Pew Research Center poll reported that 40 percent of millennials think the government should be able to suppress speech deemed offensive to minority groups, as compared to only 12 percent of those born between 1928 and 1945. Young people today voice far less faith in free speech than do their grandparents. And Europe, where racist speech is not protected, has shown that democracies can reasonably differ about this issue.

People who oppose the protection of racist speech make several arguments, all ultimately resting on a claim that speech rights conflict with equality, and that equality should prevail in the balance.* They contend that the marketplace of ideas assumes a mythical level playing field. If some speakers drown out or silence others, the marketplace cannot function in the interests of all. They argue that the history of mob and state violence targeting African-Americans makes racist speech directed at them especially indefensible. Tolerating such speech reinforces harms that this nation has done to African-Americans from slavery through Jim Crow to todays de facto segregation, implicit bias, and structural discrimination. And still others argue that while it might have made sense to tolerate Nazis marching in Skokie in 1978, now, when white supremacists have a friend in the president himself, the power and influence they wield justify a different approach.

There is truth in each of these propositions. The United States is a profoundly unequal society. Our nations historical mistreatment of African-Americans has been shameful and the scourge of racism persists to this day. Racist speech causes real harm. It can inspire violence and intimidate people from freely exercising their own rights. There is no doubt that Donald Trumps appeals to white resentment and his reluctance to condemn white supremacists after Charlottesville have emboldened many racists. But at least in the public arena, none of these unfortunate truths supports authorizing the state to suppress speech that advocates ideas antithetical to egalitarian values.

The argument that free speech should not be protected in conditions of inequality is misguided. The right to free speech does not rest on the presumption of a level playing field. Virtually all rightsspeech includedare enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor. Homeowners have greater privacy rights than apartment dwellers, who in turn have more privacy than the homeless. The fundamental right to choose how to educate ones children means little to parents who cannot afford private schools, and contributes to the resilience of segregated schools and the reproduction of privilege. Criminal defendants rights are enjoyed much more robustly by those who can afford to hire an expensive lawyer than by those dependent on the meager resources that states dedicate to the defense of the indigent, thereby contributing to the endemic disparities that plague our criminal justice system.

Critics argue that the First Amendment is different, because if the weak are silenced while the strong speak, or if some have more to spend on speech than others, the outcomes of the marketplace of ideas will be skewed. But the marketplace is a metaphor; it describes not a scientific method for identifying truth but a choice among realistic options. It maintains only that it is better for the state to remain neutral than to dictate what is true and suppress the rest. One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, but still prefer it to one in which the Trumpor indeed Obamaadministration can control what can be said. If free speech is critical to democracy and to holding our representatives accountableand it iswe cannot allow our representatives to suppress views they think are wrong, false, or disruptive.

Should our nations shameful history of racism change the equation? There is no doubt that African-Americans have suffered unique mistreatment, and that our country has yet to reckon adequately with that fact. But to treat speech targeting African-Americans differently from speech targeting anyone else cannot be squared with the first principle of free speech: the state must be neutral with regard to speakers viewpoints. Moreover, what about other groups? While each groups experiences are distinct, many have suffered grave discrimination, including Native Americans, Asian-Americans, LGBT people, women, Jews, Latinos, Muslims, and immigrants generally. Should government officials be free to censor speech that offends or targets any of these groups? If not all, which groups get special protection?

And even if we could somehow answer that question, how would we define what speech to suppress? Should the government be able to silence all arguments against affirmative action or about genetic differences between men and women, or just uneducated racist and sexist rants? It is easy to recognize inequality; it is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.

But are these challenges perhaps worth taking on because Donald Trump is president, and his victory has given new voice to white supremacists? That is exactly the wrong conclusion. After all, if we were to authorize government officials to suppress speech they find contrary to American values, it would be Donald Trumpand his allies in state and local governmentswho would use that power. Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored? At one time, most Americans embraced separate but equal for the races and separate spheres for the sexes as defining equality. It was the freedom to contest those views, safeguarded by the principle of free speech, that allowed us to reject them.

As Frederick Douglass reminded us, Power concedes nothing without a demand. It never did and it never will. Throughout our history, disadvantaged minority groups have effectively used the First Amendment to speak, associate, and assemble for the purpose of demanding their rightsand the ACLU has defended their right to do so. Where would the movements for racial justice, womens rights, and LGBT equality be without a muscular First Amendment?

In some limited but important settings, equality norms do trump free speech. At schools and in the workplace, for example, antidiscrimination law forbids harassment and hostile working conditions based on race or sex, and those rules limit what people can say there. The courts have recognized that in situations involving formal hierarchy and captive audiences, speech can be limited to ensure equal access and treatment. But those exceptions do not extend to the public sphere, where ideas must be open to full and free contestation, and those who disagree can turn away or talk back.

The response to Charlottesville showed the power of talking back. When Donald Trump implied a kind of moral equivalence between the white supremacist protesters and their counter-protesters, he quickly found himself isolated. Prominent Republicans, military leaders, business executives, and conservative, moderate, and liberal commentators alike condemned the ideology of white supremacy, Trump himself, or both.

When white supremacists called a rally the following week in Boston, they mustered only a handful of supporters. They were vastly outnumbered by tens of thousands of counterprotesters who peacefully marched through the streets to condemn white supremacy, racism, and hate. Boston proved yet again that the most powerful response to speech that we hate is not suppression but more speech. Even Stephen Bannon, until recently Trumps chief strategist and now once again executive chairman of Breitbart News, denounced white supremacists as losers and a collection of clowns. Free speech, in short, is exposing white supremacists ideas to the condemnation they deserve. Moral condemnation, not legal suppression, is the appropriate response to these despicable ideas.

Some white supremacists advocate not only hate but violence. They want to purge the country of nonwhites, non-Christians, and other undesirables, and return us to a racial caste societyand the only way to do that is through force. The First Amendment protects speech but not violence. So what possible value is there in protecting speech advocating violence? Our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent. A. Mitchell Palmer, J. Edgar Hoover, and Joseph McCarthy all used the advocacy of violence as a justification to punish people who associated with Communists, socialists, or civil rights groups.

Those lessons led the Supreme Court, in a 1969 ACLU case involving a Ku Klux Klan rally, to rule that speech advocating violence or other criminal conduct is protected unless it is intended and likely to produce imminent lawless action, a highly speech-protective rule. In addition to incitement, thus narrowly defined, a true threat against specific individuals is also not protected. But aside from these instances in which speech and violence are inextricably intertwined, speech advocating violence gets full First Amendment protection.

In Charlottesville, the ACLUs client swore under oath that he intended only a peaceful protest. The city cited general concerns about managing the crowd in seeking to move the marchers a mile from the originally approved site. But as the district court found, the city offered no reason why there wouldnt be just as many protesters and counterprotesters at the alternative site. Violence did break out in Charlottesville, but that appears to have been at least in part because the police utterly failed to keep the protesters separated or to break up the fights.

What about speech and weapons? The ACLUs executive director, Anthony Romero, explained that, in light of Charlottesville and the risk of violence at future protests, the ACLU will not represent marchers who seek to brandish weapons while protesting. (This is not a new position. In a pamphlet signed by Roger Baldwin, Arthur Garfield Hays, Morris Ernst, and others, the ACLU took a similar stance in 1934, explaining that we defended the Nazis right to speak, but not to march while armed.) This is a content-neutral policy; it applies to all armed marchers, regardless of their views. And it is driven by the twin concerns of avoiding violence and the impairment of many rights, speech included, that violence so often occasions. Free speech allows us to resolve our differences through public reason; violence is its antithesis. The First Amendment protects the exchange of views, not the exchange of bullets. Just as it is reasonable to exclude weapons from courthouses, airports, schools, and Fourth of July celebrations on the National Mall, so it is reasonable to exclude them from public protests.

Some ACLU staff and supporters have made a more limited argument. They dont directly question whether the First Amendment should protect white supremacist groups. Instead, they ask why the ACLU as an organization represents them. In most cases, the protesters should be able to find lawyers elsewhere. Many ACLU staff members understandably find representing these groups repugnant; their views are directly contrary to many of the values we fight for. And representing right-wing extremists makes it more difficult for the ACLU to work with its allies on a wide range of issues, from racial justice to LGBT equality to immigrants rights. As a matter of resources, the ACLU spends far more on claims to equality by marginalized groups than it does on First Amendment claims. If the First Amendment work is undermining our other efforts, why do it?

These are real costs, and deserve consideration as ACLU lawyers make case-by-case decisions about how to deploy our resources. But they cannot be a bar to doing such work. The truth is that both internally and externally, it would be much easier for the ACLU to represent only those with whom we agree. But the power of our First Amendment advocacy turns on our commitment to a principle of viewpoint neutrality that requires protection for proponents and opponents of our own best view of racial justice. If we defended speech only when we agreed with it, on what ground would we ask others to tolerate speech they oppose?

In a fundamental sense, the First Amendment safeguards not only the American experiment in democratic pluralism, but everything the ACLU does. In the pursuit of liberty and justice, we associate, advocate, and petition the government. We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself. It protects the press, the academy, religion, political parties, and nonprofit associations like ours. In the era of Donald Trump, the importance of preserving these avenues for advancing justice and preserving democracy should be more evident than ever.

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

[[A person speaking to the reader.]] Person: Public Service Announcehment: The *right to free speech* means the government can’t arrest you for what you say. [[Close-up on person’s face.]] Person: It doesn’t mean that anyone else has to listen to your bullshit, – or host you while you share it. [[Back to full figure.]] Person: The 1st Amendment doesn’t shield you from criticism or consequences. [[Close-up.]] Person: If you’re yelled at, boycotted, have your show canceled, or get banned from an internet community, your free speech rights aren’t being violated. [[Person, holding palm upward.]] Person: It’s just that the people listening think you’re an asshole, [[A door that is ajar.]] Person: And they’re showing you the door. {{Title text: I can’t remember where I heard this, but someone once said that defending a position by citing free speech is sort of the ultimate concession; you’re saying that the most compelling thing you can say for your position is that it’s not literally illegal to express.}}

This work is licensed under a Creative Commons Attribution-NonCommercial 2.5 License.

This means you’re free to copy and share these comics (but not to sell them). More details.

White nationalist Richard Spencer’s free speech fight against Google, Facebook and other tech companies has some unlikely support from the left. Tasos Katopodis/Getty Images hide caption

White nationalist Richard Spencer’s free speech fight against Google, Facebook and other tech companies has some unlikely support from the left.

Following the violence in Charlottesville, Va., Silicon Valley tech firms removed far-right groups from search results, cut off their websites and choked their ability to raise money online.

The moves have leaders on the far-right calling for the government to step in and regulate these companies. They have some strange bedfellows in this many liberals also are calling for more regulation of the same companies.

On the far-right is Richard Spencer. He is a white supremacist.

“I would ultimately support a homeland for white people,” Spencer says. “I think that ethnically or racially defined political orders are legitimate.”

After Donald Trump was elected president, Spencer got some press about a speech during which he shouted: “Hail Trump! Hail our people! Hail Victory!” and members of the audience gave him a Nazi salute.

But, it is the First Amendment that now inspires Spencer, who was a speaker at the white supremacist rally in Charlottesville.

In the wake of the violence that occurred there, the Daily Stormer an online neo-Nazi publication was blocked by a series of major tech companies. Its domain name was taken away by GoDaddy. Google stopped linking to it. Facebook took down links to any article it published. And it can’t use PayPal anymore.

“Getting kicked off Facebook or YouTube or PayPal or whatever, this is effectively losing the ability to speak,” Spencer says. “It is actually a more powerful form of censorship” than it would be if a government were to censor.

Companies like Google and Facebook are not covered by the First Amendment, which applies only to the federal government. But Spencer feels these companies are so large that the government needs to step in just as it did with broadcasting. Spencer says that otherwise, there won’t be freedom of speech.

“These are the free speech platforms in the 21st century,” he says. “So if we’re going to regulate all of these 20th century ways of expressing ourselves, then why are we so loath to regulate the 21st century ones, which are much more relevant and much more vital?”

Spencer has some unlikely allies on this.

Robert McChesney, a communications professor at the University of Illinois, describes himself as a Democratic socialist and has written books about the threat of fascism.

“I think Richard Spencer and I wouldn’t agree on hardly anything,” he says. “But on the issues of whether these companies should be able to control what I can and can’t hear, I think in principle we have to be together on that. All Americans should, across the political spectrum.”

Right now, Google has more than 80 percent of the online search market, according to Net Market Share. Google and Facebook combined have 77 percent of the online ad market, and 79 percent of Americans on the Internet have a Facebook account, according to Pew Research.

“The research shows that if Facebook or Google changes the algorithm just slightly and puts a different type of story in there, it affects the way people think about the world,” McChesney says. “Their internal research demonstrates this.”

Because these are private companies, they don’t have to reveal their algorithms or what changes they make to them.

Currently, many Americans may agree with the choice to censor the Richard Spencers of the world, but McChesney says it might not always affect groups people don’t like.

“What’s to stop them from turning around and saying, ‘Well, we don’t like these people who are advocating gay rights. We don’t like these people who are advocating workers’ rights’?” he says.

That is the question leading both white nationalist Spencer and left-leaning professor McChesney to call for the government to step in.

Plus, more than a third of Americans think it should be illegal to join the KKK or American Nazi Party

Americans have always had a problem with free speech. Those in the latest Economist/YouGov Poll are no exception. While the First Amendment may protect speech, many Americans would not allow dangerous speech or speech many of them disagree with.

Thats especially true for speech associated with a group like ISIS. Most Americans Democrats and Republicans would forbid an ISIS supporter from making a speech in their community. It matters little whether someone is personally worried about becoming a terror victim or whether their expectations for an attack on U.S. soil is high or low. All groups oppose ISIS speech.

There are similar reactions when it comes to whether or not a book written by an ISIS supporter should be removed from the public library, though in this case, more than a third oppose removing such a book. But most would fire any ISIS supporter teaching in a college. On these two questions there are party differences: Republicans are 14 points more likely than Democrats to want to remove an ISIS supporters book from the public library and 13 points more like to fire the college teacher. But both would remove the book and fire the teacher.

In the past, the General Social Survey has asked about members of multiple groups giving speeches. The support or opposition to free speech depends on the group asked about with an anti-American Muslim the least likely to be given free speech protection.

The GSS hasnt asked specifically about the Ku Klux Klan, but racist speech is less acceptable in their polls than atheist, militarist, pro-gay (which has become dramatically more acceptable since the 1970s) or Communist speech. In this poll, Americans would not allow a member of the Klan to speak, are divided on whether or not they would remove a Klan book from the public library, and would fire a college teacher who was a Klan sympathizer.

Again, this is not necessarily a matter for partisan debate. Democrats and Republicans would ban a Klan speech, remove a Klan supporters book, and fire a Klan sympathizer from a college teaching position. Trump voters seem to be the most accepting of them: narrow pluralities of Trump voters would allow the speech (49%-39%), and keep the book on the shelves (46% would not remove the book, 39% would).

Feelings are similar when it comes to the free speech rights of neo-Nazis. Americans dont think they should have them. The public would ban the speech, remove the book, and fire the college teacher. Again, Democrats and Republicans agree.

Neo-Nazis and the KKK are decidedly unpopular. Just 6% have a favorable view of the Ku Klux Klan, and 5% are favorable towards neo-Nazis. And these low ratings are across the board whites, blacks, Democrats, Republicans, Trump voters and Clinton voters.

The protection of unpopular speech such as American Civil Liberties Unions defense of the Charlottesville white nationalist protestors is itself not popular. A third approve of the ACLUs actions, 43% disapprove. Democrats, who generally think better of the ACLU than Republicans do, are slightly more likely than Republicans to disapprove.

The Constitution also protects the right of association, and here the public divides on whether or not membership in the Klan or in a neo-Nazi group should be allowed. Just about as many would make it illegal for Americans to join these groups as would permit it.

Circulated this morning by University of California at Berkeley Chancellor Carol Christ:

This fall, the issue of free speech will once more engage our community in powerful and complex ways. Events in Charlottesville, with their racism, bigotry, violence and mayhem, make the issue of free speech even more tense. The law is very clear; public institutions like UC Berkeley must permit speakers invited in accordance with campus policies to speak, without discrimination in regard to point of view. The United States has the strongest free speech protections of any liberal democracy; the First Amendment protects even speech that most of us would find hateful, abhorrent and odious, and the courts have consistently upheld these protections.

But the most powerful argument for free speech is not one of legal constraint that were required to allow it but of value. The public expression of many sharply divergent points of view is fundamental both to our democracy and to our mission as a university. The philosophical justification underlying free speech, most powerfully articulated by John Stuart Mill in his book, On Liberty, rests on two basic assumptions. The first is that truth is of such power that it will always ultimately prevail; any abridgement of argument therefore compromises the opportunity of exchanging error for truth. The second is an extreme skepticism about the right of any authority to determine which opinions are noxious or abhorrent. Once you embark on the path to censorship, you make your own speech vulnerable to it.

Berkeley, as you know, is the home of the Free Speech Movement, where students on the right and students on the left united to fight for the right to advocate political views on campus. Particularly now, it is critical that the Berkeley community come together once again to protect this right. It is who we are.

Nonetheless, defending the right of free speech for those whose ideas we find offensive is not easy. It often conflicts with the values we hold as a community tolerance, inclusion, reason and diversity. Some constitutionally-protected speech attacks the very identity of particular groups of individuals in ways that are deeply hurtful. However, the right response is not the hecklers veto, or what some call platform denial. Call toxic speech out for what it is, dont shout it down, for in shouting it down, you collude in the narrative that universities are not open to all speech. Respond to hate speech with more speech.

We all desire safe space, where we can be ourselves and find support for our identities. You have the right at Berkeley to expect the university to keep you physically safe. But we would be providing students with a less valuable education, preparing them less well for the world after graduation, if we tried to shelter them from ideas that many find wrong, even dangerous. We must show that we can choose what to listen to, that we can cultivate our own arguments and that we can develop inner resilience, which is the surest form of safe space. These are not easy tasks, and we will offer support services for those who desire them.

This September, Ben Shapiro and Milo Yiannopoulos have both been invited by student groups to speak at Berkeley. The university has the responsibility to provide safety and security for its community and guests, and we will invest the necessary resources to achieve that goal. If you choose to protest, do so peacefully. That is your right, and we will defend it with vigor. We will not tolerate violence, and we will hold anyone accountable who engages in it.

We will have many opportunities this year to come together as a Berkeley community over the issue of free speech; it will be a free speech year. We have already planned a student panel, a faculty panel and several book talks. Bridge USA and the Center for New Media will hold a day-long conference on October 5; PEN, the international writers organization, will hold a free speech convening in Berkeley on October 23. We are planning a series in which people with sharply divergent points of view will meet for a moderated discussion. Free speech is our legacy, and we have the power once more to shape this narrative.

Recent events in the United States have only reaffirmed the wisdom of this liberal compromise. If there was ever a group whose speech appears to me to be obviously evil and dangerous, it is the white supremacists who marched in Charlottesville earlier this month. But the president of the United States is sympathetic to white supremacists; to him, it is the (mythical) alt-left that presents the real threat. If he had the power to suppress freedom of speech, he would use it to silence the people I agree with. It is better for me for no one to possess that power than to entrust it to someone who might regard me as an enemy.

Campus leftists who believe they are serving the cause of goodness and truth by silencing right-wing (or even not-so-right-wing) speakers are living in a fools paradise, because they temporarily inhabit an environment where they are in the majority. When they graduate into Trumps America, they will find that many people, including people in power, think they are the ones who are wrong and dangerous. Then the principle of free speech will become their shield, as it has long shielded dissidents and radicals in America. Without it, politics becomes a war of all against all, and as we have learned since last November, there is no guarantee that the right side will win.

Adam Kirsch is a poet and a critic. His most recent book is The Global Novel: Writing the World in the 21st Century.

By Francine Prose

What could free speech possibly mean when a mob is bullying and beating people with whom they dont agree?

Lately, Ive been thinking about The Emperors New Clothes. What a deeply felt and personal story it must have been for Hans Christian Andersen, whose work is full of plucky honest children. Awkward and painfully unable to pick up on basic social cues, he chose, as his fairy-tale hero, the outspoken innocent who delivers an unwelcome truth.

The emperor is naked! Was Andersen also alluding to one role of the writer: to say the thing that everyone knows but fears to say? Even the emperor realizes that the boy is right. No one punishes or contradicts the young truth-teller. But naked or not, no one is owning up. The procession must go on, so the emperor held himself stiffer than ever, and the chamberlain held up the invisible train.

Had the story been set here, we might say that the little boys right to call attention to the emperors nudity was protected by the First Amendment. But doesnt context matter? Wasnt the boy discouraged by his parents from embarrassing their leader? Shouldnt he have waited for a private moment, or asked the chamberlain to explain the emperors intention?

Not according to the United States Supreme Court. On the basis of past decisions, we can imagine that the justices would have decided in favor of the boy. Not only would he be allowed to say what hed observed, but he could have hurled insults racial, religious, sexual, political at the emperor, and still he would have been within his constitutional rights. In order for the boy to exceed the limits of protected free speech, he would have had to exhort the crowd to attack their naked ruler.

Traditionally, the courts have defended the freedom to express the thought that we hate; the law doesnt ban words that wound egos or hurt feelings. Its concerned not with psychological harm but with physical action, injury and risk with real and present danger.

Though when violence does occur, as it did in Charlottesville, we want to be very clear about what constitutes exhortation and incitement. Its regrettable that the phrase free speech should have been co-opted by white supremacists, as if the only kind of free speech worth rallying around is hate speech. And what could free speech possibly mean when a mob is bullying and beating people with whom they dont agree?

Obviously, context is important. Just because youre legally permitted to say what you want doesnt mean its socially or morally acceptable to subject other humans to racist rants. Yet almost daily one can see, on social media, someone doing just that, losing it on a plane or at the checkout counter. I think the ranters are reprehensible, but I dont want to see them locked up unless theyre trying to goad their fellow passengers or shoppers to mob violence.

Democracy depends on the civil, healthy and open exchange of ideas, on the chance to be persuaded by opposing opinions, to reasonably consider variant arguments and explanations. Freedom of speech, free expression, freedom of assembly, freedom of the press those guarantees have helped keep us from sliding into dictatorship, a fate that has befallen countries with formerly democratic governments and levels of education and prosperity not unlike our own.

We need to be clear about what those protections are, and about why we need them a need that seems to grow more intense each time Donald Trump attacks the press; when the former chief of staff Reince Priebus floated a plan to change libel laws (and by extension the First Amendment) in some vague but ominous way; and each time someone brings an automatic weapon to a free and open political demonstration.

Our democracy may have its flaws, but the alternative the repression that exists right now in so many countries is worse. That is a different fairy tale, less like the work of Andersen than like some modern-day Brothers Grimm. That is the story that ends with the little boy being arrested, jailed and killed for the crime of daring to say out loud what the emperor isnt wearing.

Francine Prose is the author of more than 20 works of fiction and nonfiction, among them the novel Blue Angel, a National Book Award nominee, and the guide Reading Like a Writer, a New York Times best seller. Her most recent novel is Mister Monkey. Currently a distinguished visiting writer at Bard College, she is the recipient of numerous grants and awards; a contributing editor at Harpers, Saveur and Bomb; a former president of the PEN American Center; and a member of the American Academy of Arts and Letters and the American Academy of Arts and Sciences.

BERKELEY In recent months, white nationalists and other alt-right groups haveadvanced the argument that UC Berkeley isnt living up to its distinction as the birthplace of the Free Speech Movement. By canceling events such as a February speech by conservative provocateur Milo Yiannopoulos, they contend, the school is stepping on their First Amendment right to express themselves.

Carol Christ, Cals new chancellor, is well aware how that argument has gained steam in recent months. Before her tenure, former Chancellor Nicholas Dirks, who stepped down this summer, was criticized for addressing free speech issues reactively, not cooperatively.

So now, as a highly publicized, right-wing rally targets the city of Berkeley on Sunday, Christ is looking to regain control of the narrative. She has declared this school term a year of free speech in which the university will recount the origins of its free speech legacy and invite both conservative and liberal speakers to campus.

Free speech is not inexpensive, said Dan Mogulof, a spokesman for the university.

But in some ways, thats the cost to the school of reclaiming its reputation as the birthplace of the Free Speech Movement.

Free speech scholars say that if Christ succeeds in both fostering meaningful conversations and keeping violence at bay, the schools approach could serve as a model for other colleges grappling with the issue. In recent months, Pennsylvania State University, Texas A&M University and others have come under fire for declining to host right-wing activists and white nationalists, or canceling their talks.

On Wednesday, Christ emailed a letter with the subject line Free speech to the campus community and hosted her first fireside chat with student leaders on the topic.

This is the new reality, said Mogulof. We cant duck and cover. We have to be out there engaged in conversation.

Thats not how the school approached the free-speech issue as recently as last year and its certainly not how the school addressed it in the 1960s. In 1964, Dean of Students Katherine Towle prohibited students from taking positions on off-campus political issues because the university was hoping to minimize student involvement in political demonstrations off campus.

But the announcement backfired spectacularly. Faculty and students, led by a young Mario Savio, protested for months and ultimately won the right to speak openly. In response, most other colleges in the U.S. loosened regulations around political activity by students.

Today, anyone who sits on the famed Mario Savio steps at UC Berkeley for any length of time inevitably hears several languages and sees people from around the world pass by. For Cals leaders and many students, that ethnic and racial diversity has long been a point of pride.

But that diversityand the schools worldwide reputation as a progressive university also make the college a target for white nationalists and neo-Nazis.

In February, while Dirks was still in charge, Berkeley College Republicans invited Yiannopoulos to speak on campus. But tension between his supporters and opponents, not all of them affiliated with the university, erupted into violence that ultimately prompted the school to pull the plug on the event, citing security concerns. In the following months, the school raised similar concerns about having the conservative commentator Ann Coulter on campus.

The Berkeley College Republicans, joined by the Young Americas Foundation, filed a lawsuit alleging the school violated the First Amendment by imposing curfew and venue restrictions on Coulter and other conservative speakers.

Harmeet Dhillon, their lawyer, says it remains to be seen whether Christs tenure will bring an improvement in how the school handles free speech issues.

Christs comments so far mark a welcomefirst step, Dhillon said. However, they cannot address the deep-seated issues at Cal with a sort of fig leaf approach.

Shed like to see the university hire more conservative professors so that conservative students feel more comfortable sharing their views, she said. Were literally years or generations away from that at Cal, she said.

Bettina Aptheker, one of the students who launched the Free Speech Movement at Cal, is now a feminist studies professor at UC Santa Cruz. She is pleased Christ is addressing the issue head-on.

During the McCarthy era in the 1950s, while schools were cracking down on political advocacy, thousands of Americans were accused of and investigated for being communists by some on the right. In essence, Aptheker said, it was the right trying to suppress freedom of speech.

Now, she said, you have the ascendancy of the right again and a kind of hijacking of the free speech issue in a way that makes it seem like the left is trying to suppress freedom of speech which is not true.

Broadly speaking, the argument of Christ and other UC Berkeley leaders is that hate speech is best countered with more measured, thoughtful speech. That may be something Dirks believed but he didnt step forward like Christ to model the idea. Her approach appears to be resonating with professors and free speech scholars.

Youve got to protect the greatest possible range of speech, said Gary Orfield, co-director of the Civil Rights Project at UCLA. The answer to really idiotic racist speech is speech explaining why its idiotic and racist.

Former New York City police officer Brian Levin, director of the Center for the Study of Hate and Extremism at Cal State San Bernardino, agrees.

Universities have been doing a laudable job of having a diversity of people, but what theyve not been doing a laudable job of is getting a diversity of ideas, he said. This is a test of academia and we are failing.

But not everyone is so sanguine. Zaynab Abdulqadir-Morris, a Cal senior and president of the Associated Students of the University of California, said she wants more students to be comfortable interacting with people who have different views. But shes also concerned about the real threat of violence when rallies and protests happen on or near campus.

And she thinks theres a line between fostering debate and opening the campus to provocateurs like Yiannopoulos.When speech is grounded in hate for another person, she said, its not free speech any more.

In her letter this week, Christ pushed back at that notion, writing: Some constitutionally protected speech attacks the very identity of particular groups of individuals in ways that are deeply hurtful. However, the right response is not the hecklers veto, or what some call platform denial. Call toxic speech out for what it is, dont shout it down, for in shouting it down, you collude in the narrative that universities are not open to all speech.

As a public university, Berkeley officials acknowledge they must balance protecting free speech with preventing the violence that has plagued rallies on campus in the past, or worse, deadly confrontation, as happened in Charlottesville, Virginia, where a young woman was killed earlier this month.

Ahead of Sundays rally which is on city, not university, property Cal has been in close contact with city officials, Mogulof said. The school is providing information on how to protest safely to students who want to join a counterprotest and also supportive services to students who are anxious about the rally. The school has learned from past protests that it needs to have more police in place for free speech events than it has in the past,Mogulof said.

Aptheker and Orfield point tothe peace that was maintained in Boston recently when thousands of counterprotesters overwhelmed a much smaller free speech rally that some white supremacists had promised to attend.

If its done well, Orfield said, it will create an example for the rest of the country.

BISMARCK, N.D. Environmental groups being sued by the developer of the Dakota Access oil pipeline say the lawsuit is an attack on free speech and an effort to punish supporters of American Indian tribes that oppose the project over fears of environmental harm.

Texas-based Energy Transfer Partners on Tuesday filed a lawsuit against Greenpeace, BankTrack and Earth First, alleging they disseminated false and misleading information about the project, interfered with its construction and damaged the company’s reputation and finances through illegal acts.

The lawsuit filed in federal court in North Dakota cites “a pattern of criminal activity and a campaign of misinformation for purposes of increasing donations and advancing their political or business agendas,” and seeks damages that could approach $1 billion.

BankTrack called the allegations “outrageous” and maintained it did nothing wrong in informing the public and commercial banks about the potential impact of the $3.8 billion pipeline to move North Dakota oil to a distribution point in Illinois. It also denied it benefited financially from its efforts.

“BankTrack considers the lawsuit an attempt … to silence civil society organizations, and to curb their crucial role in helping to foster business conduct globally that protects the environment, recognizes the rights and interests of all stakeholders, and respects human rights,” the group said in a statement.

Greenpeace attorney Tom Wetterer said the lawsuit was meritless, “harassment by corporate bullies” and an effort “to silence free speech.”

Michael Bowe, one of the company’s attorneys, countered that the response by Greenpeace “was not to defend the truth of its challenged statements, but to attack the lawyers who exposed those statements as false.”

“Our laws hold accountable those who intentionally make demonstrably false statements, and there is no special exception for Greenpeace,” Bowe said.

Earth First did not reply to Associated Press requests for comment.

Earthjustice, whose attorneys are representing the Standing Rock Sioux tribe in a federal lawsuit that aims to shut down the pipeline, isn’t a defendant in the lawsuit but is mentioned throughout as being part of a vast network of groups and people who allegedly conspired against the pipeline.

Earthjustice President Trip Van Noppen said the lawsuit is “nothing more than an attack on all those who stood up for the tribe in this historic fight, packaged as a legal claim.”

ETP said the company “has an obligation to its shareholders, partners, stakeholders and all those negatively impacted by the violence and destruction intentionally incited by the defendants to file this lawsuit.”

The 1,200-mile (1,930-kilometer) pipeline began operating June 1, after months of delays caused by legal wrangling and on-the-ground protests. Police made 761 arrests in North Dakota between August and February.

Jennifer Delton is the Douglas Family Chair in American culture, history, and literary and interdisciplinary studies at Skidmore College. She is the author of, most recently, ‘Rethinking the 1950s: How Anticommunism and the Cold War Made America Liberal.”

Heres the dilemma college presidents face in the fall: Either uphold free speech on campus and risk violent counterprotests, or ban conservative provocateurs and confirm the freedom of speech crisis on campuses. Either way their institutions legitimacy is undermined.

This impossible dilemma is no accident. It has been part of a strategy, deployed first by conservatives and perfected by the alt-right. The alt-right is a nebulous, still-developing political movement, but we know at least two things about it. One, its most prominent popularizers Stephen K. Bannon, Milo Yiannopoulos and Richard Spencer have all articulated that they seek to destroy liberal cultural hegemony, which they associate with a bipartisan, globalizing, multicultural, corporate elite, and which, they think, is perpetrated in the United States by the mainstream media and on college campuses.

The second thing we know about the alt-right is that its provocateurs seek to bait liberal institutions by weaponizing the concept of free speech, which is an issue that divides the liberal left. It is true that higher education has brought much of this on itself through the extreme policing of speech and tolerance of student protesters who shut down speakers with whom they disagree. But that doesnt diminish the extent to which the alt-right and conservatives are using free speech to attack and destroy colleges and universities, which have long promoted different variations of the internationalist, secular, cosmopolitan, multicultural liberalism that marks the thinking of educated elites of both parties.

As college presidents try to figure out whether the First Amendment protects conservatives right to create political spectacle and instigate violence, it might be useful to recall another time when American liberals were forced to sidestep First Amendment absolutism to combat a political foe: the 1940s, when New Deal liberals purged U.S. communists from American political life.

Thats right, New Deal liberals and unionists including President Harry S. Truman, Minnesota Sen. Hubert Humphrey, black labor leader A. Philip Randolph and Walter Reuther of the United Auto Workers were staunch anticommunists who effectively shut down the Communist Party USA (CPUSA), forcing communists out of unions, civil rights organizations, jobs and universities.

They did so because communists were a disruptive force that was baiting and dividing the liberal left. Communists were also in a party directed by Moscow just as the Cold War was commencing. Their presence in liberal organizations made liberals vulnerable to Republican and conservative attacks. So those liberals interested in political success (and in preserving the New Deal) drove them out of politics.

What about the First Amendment, you may ask? Well, this was a point of contention that likewise divided the liberal-left community. Liberals had historically supported freedom of speech and assembly; they saw themselves as champions of the First Amendment. To deny communists freedom of speech and assembly to run them out of politics on the basis of their ideas and political connections seemed like the height of hypocrisy. Communists constantly pointed this out, as did those liberals who rejected the anticommunist agenda.

So anticommunist liberals made a series of arguments that justified denying communists these rights on account of their disingenuous intentions and totalitarian ideology. Most famously, liberal activist Arthur Schlesinger Jr. argued that communists hid behind the First Amendment to attack liberal democracy, using it as a shield as they sought to destroy the democratic system that upheld those rights.

Schlesinger understood there werent enough communists in the United States to actually foment revolution. But there were enough to divide progressive forces and thus create an opportunity for conservative Republicans to take power and repeal the New Deal, which he believed would in turn destabilize American capitalism and possibly tilt the balance of international power to the Soviets. Liberals would be chumps to let a principled commitment to freedom of speech undercut the pragmatic goal of political survival, which was the only way to ensure progress in civil rights and social welfare.

Philosopher Sidney Hook hinged his argument about speech on the distinction between the free flow of ideas, which the First Amendment protected, and actions, which it did not. He said liberals had no problem with communists ideas, which they were free to expound upon and disseminate. The problem lay in their organized actions, which involved all sorts of stratagems, maneuvers, and illegal methods, evasions and subterfuges developed by Lenin to subvert democracy.

Historians remain divided about the pros and cons of American communism, but most agree that the party often operated in secret and that it was directed and funded by Moscow. Communists denied this, of course, but the partys activities were the basis of Hooks contention that the CPUSA was a conspiracy, and thus not protected by the First Amendment although its ideas were. Hook didnt think thatthe state should ban the Communist Party (which would be unconstitutional and ineffective), but that private citizens and institutions should shun and expose communists, denying them the opportunity to further their political agenda.

Subsequent liberals (and most of my professors) condemned these anticommunist liberals for opening the door to McCarthyism and Cold War militarism. But given our current political moment and the threat posed by the actions of alt-right provocateurs, Schlesingers and Hooks arguments may bear revisiting. Both worried that liberals commitment to the absoluteness of rights made them unable to confront an enemy that didnt share that commitment. Both understood that the CPUSA, like the alt-right, was engaged in a struggle to destroy the cultural and political legitimacy of western democratic liberalism. And both understood that First Amendment absolutism was a luxury that only a stable, peaceable society could afford. I cant help but think that even William F. Buckley would have agreed with this.

Historical analogies are always imperfect. Nonetheless, it is clear that western liberalism, as well as left-liberalism in the United States, is under attack from people who see the First Amendment as a political weapon and not a sacred principle. Quoting Voltaire is not going to preserve anyones liberties least of all those populations most vulnerable to vicious racist, misogynist and anti-Semitic attacks.

It was one thing to defend the American Nazi Partysright to march in Skokie, Ill. in 1977, when the liberal establishment and mainstream media were still intact and American Nazi Party wasamarginal fringe group. The groupwas offensive, but neither its actions nor its ideas posed a threat to the political or social order, which was stable. The situation is different today, with an erratic PresidentTrump in the White House, elites in disarray and white nationalism on the rise. In this situation, and against this foe, it may be worth remembering that our constitutional rights are not unchanging abstract principles, but, as Hook and Schlesinger argued, always evaluated in terms of their consequences for society at any given historical moment.

At the same time, however, colleges and universities need to recognize that their liberal critics of, say, diversity policies or Title IX excesses are not political foes and should not be subject to censorship or censure. One reason the right has been able to so effectively exploit free speech is because campuses have become places where the free exchange of ideas has been curbed by peer pressure, self-policing and a self-righteous call-out culture, as described by Jonathan Haidt, Jonathan Chait and Mark Lilla. Until university presidents offer real leadership inreconciling the liberal critique of identity politicswith a new generation of diverse students, faculty and staff for whom such politics representprogress, they will be unable to protect their institutions from conservative attacks.

CORRECTION: An earlier version of this article misidentified the group that marched in Skokie, Ill., in 1977. It was the American Nazi Party, not the Ku Klux Klan.

[[A person speaking to the reader.]] Person: Public Service Announcehment: The *right to free speech* means the government can’t arrest you for what you say. [[Close-up on person’s face.]] Person: It doesn’t mean that anyone else has to listen to your bullshit, – or host you while you share it. [[Back to full figure.]] Person: The 1st Amendment doesn’t shield you from criticism or consequences. [[Close-up.]] Person: If you’re yelled at, boycotted, have your show canceled, or get banned from an internet community, your free speech rights aren’t being violated. [[Person, holding palm upward.]] Person: It’s just that the people listening think you’re an asshole, [[A door that is ajar.]] Person: And they’re showing you the door. {{Title text: I can’t remember where I heard this, but someone once said that defending a position by citing free speech is sort of the ultimate concession; you’re saying that the most compelling thing you can say for your position is that it’s not literally illegal to express.}}

This work is licensed under a Creative Commons Attribution-NonCommercial 2.5 License.

This means you’re free to copy and share these comics (but not to sell them). More details.

White nationalist Richard Spencer’s free speech fight against Google, Facebook and other tech companies has some unlikely support from the left. Tasos Katopodis/Getty Images hide caption

White nationalist Richard Spencer’s free speech fight against Google, Facebook and other tech companies has some unlikely support from the left.

Following the violence in Charlottesville, Va., Silicon Valley tech firms removed far-right groups from search results, cut off their websites and choked their ability to raise money online.

The moves have leaders on the far-right calling for the government to step in and regulate these companies. They have some strange bedfellows in this many liberals also are calling for more regulation of the same companies.

On the far-right is Richard Spencer. He is a white supremacist.

“I would ultimately support a homeland for white people,” Spencer says. “I think that ethnically or racially defined political orders are legitimate.”

After Donald Trump was elected president, Spencer got some press about a speech during which he shouted: “Hail Trump! Hail our people! Hail Victory!” and members of the audience gave him a Nazi salute.

But, it is the First Amendment that now inspires Spencer, who was a speaker at the white supremacist rally in Charlottesville.

In the wake of the violence that occurred there, the Daily Stormer an online neo-Nazi publication was blocked by a series of major tech companies. Its domain name was taken away by GoDaddy. Google stopped linking to it. Facebook took down links to any article it published. And it can’t use PayPal anymore.

“Getting kicked off Facebook or YouTube or PayPal or whatever, this is effectively losing the ability to speak,” Spencer says. “It is actually a more powerful form of censorship” than it would be if a government were to censor.

Companies like Google and Facebook are not covered by the First Amendment, which applies only to the federal government. But Spencer feels these companies are so large that the government needs to step in just as it did with broadcasting. Spencer says that otherwise, there won’t be freedom of speech.

“These are the free speech platforms in the 21st century,” he says. “So if we’re going to regulate all of these 20th century ways of expressing ourselves, then why are we so loath to regulate the 21st century ones, which are much more relevant and much more vital?”

Spencer has some unlikely allies on this.

Robert McChesney, a communications professor at the University of Illinois, describes himself as a Democratic socialist and has written books about the threat of fascism.

“I think Richard Spencer and I wouldn’t agree on hardly anything,” he says. “But on the issues of whether these companies should be able to control what I can and can’t hear, I think in principle we have to be together on that. All Americans should, across the political spectrum.”

Right now, Google has more than 80 percent of the online search market, according to Net Market Share. Google and Facebook combined have 77 percent of the online ad market, and 79 percent of Americans on the Internet have a Facebook account, according to Pew Research.

“The research shows that if Facebook or Google changes the algorithm just slightly and puts a different type of story in there, it affects the way people think about the world,” McChesney says. “Their internal research demonstrates this.”

Because these are private companies, they don’t have to reveal their algorithms or what changes they make to them.

Currently, many Americans may agree with the choice to censor the Richard Spencers of the world, but McChesney says it might not always affect groups people don’t like.

“What’s to stop them from turning around and saying, ‘Well, we don’t like these people who are advocating gay rights. We don’t like these people who are advocating workers’ rights’?” he says.

That is the question leading both white nationalist Spencer and left-leaning professor McChesney to call for the government to step in.